> Land and Environment Court of New South Wales CITATION : Rado and Greco Developments Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 346 APPLICANT Rado and Greco Developments Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10247 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- For the construction of an attached dual occupancy - bushfire hazard - streetscape - privacy - drainage - solar access LEGISLATION CITED: State Environmental Planning Policy No. 53 Ku-ring-gai Planning Scheme Ordinance CASES CITED: DATES OF HEARING: 03/09/03, 17/09/03 and 28/11/2003 EX TEMPORE JUDGMENT DATE : 12/24/2003 APPLICANT Mr C Gough, solicitor SOLICITORS Storey and Gough LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10247 of 2003 Hoffman C 24 December 2004 Rado & Greco Developments Pty Ltd Applicant v Ku-ring-gai Council Respondent Judgment 1 . This was a Class 1 appeal No. 10247 of 2003 between Rado and Greco Developments Pty Limited v Ku-Ring-Gai Council in regard to an application for a two storey attached dual occupancy at 27A Blaxland Road Killara. The allotment had an area of 858 m2 and a frontage of 27.54 m to the street. It was approximately rectangular with a depth of about 32 m. 2 . On its north-eastern side was an access drive to a battleaxe lot that was No. 27 Blaxland road. It was on the north-west side of No. 27A. Number 27 fronted the bushland of Lane Cove National Park. There was an existing two storey house on No. 27. Across the battleaxe drive was No. 25, another two storey house, and its driveway ran beside the one to No. 27. Number 29 on the south-west side of the site was a two storey timber house set well back on its allotment adjacent to the house on No. 27. There was another house on another battleaxe allotment on the north-east side of No. 27 and below No. 25. 3 . The site at No. 27A sloped down about 4 m from front to back although the rear section adjoining No. 27 was relatively flat. There was a small retaining wall on the common boundary with No. 27's garage, and the garage was set about 1 m from the boundary. The back of the house was only about 3 m off the same boundary with a concrete paved service yard between. Number 27's main rooms all faced north-west towards the bush. 4 . The proposal had a shared driveway for both units. It came off the road near the boundary with No. 29 Blaxland Road and then split to go to the separate garages. Due to the slope the garages were on the upper storey of each unit. Also on that floor in each unit was the master bedroom, the study and the entry lobby. Below was the living room, dining room and kitchen area. In unit 1 that was beside No. 29. There were also two other bedrooms on the lower floor. 5 . In unit 2 the living and kitchen areas were on the No. 25 side of the allotment. The two additional bedrooms were rooms in the roof creating a third storey in unit 2. They had dormer windows in the hipped tiled roof. 6 . The parties came to the Court with consent orders. There were no issues. The respondent sought that the Court hear from the objectors who had concerns about: 1. bushfire hazard of the locality, 2. the drainage of the proposal through No. 27, the battleaxe lot below the site, 3. shadows and solar access and the loss of privacy, 4. streetscape appearance, 5. loss of existing trees. 7 . The Court heard the objectors' evidence from: - Mrs H Bartlett of 25 Blaxland Road, - Dr A P Raiche of 18 Blaxland Road and - Mr P Bartlett of 25 Blaxland Road. - The owner of No. 27 had lodged objections but did not appear to give oral evidence. 8 . There were a number of other objectors and their letters were in Exhibit 3. 9 . The land was zoned Residential 2B under the Ku-Ring-Gai Planning Scheme Ordinance but the application had been lodged under State Environmental Planning Policy No. 53 - Metropolitan Residential Development and was permissible. 10 . A summary of the proposal is as follows. The minimum lot size for dual occupancy is 400 m2, the site is 858 m2. The maximum floor space ratio is 0.5:1, the proposal is 0.44:1. The maximum height is 8 m and the proposal is slightly above 8 m to the eave of the dormer windows of unit 2. The ceilings of the upper main floor is about 6 m so the majority of the building was well below the height limit. 11 . The applicant had lodged a State Environmental Planning Policy No. 1 objection, to seek approval of a height exceedance of about 200 mm in the attic rooms of unit 2. The council supported the objection. 12 . The objectors were concerned the proposal would change the look of the street which it was said had a consistent character of houses set well back on their lots giving it a bushland character. Whilst this description was true in parts of the street in other places, notably Nos. 25 and 27, both with battleaxe lots, the front setbacks were much less and there were some places where houses dominated the vegetation. 13 . Due to the slope of the ground, the proposal would appear single storey from the street except for the dormer windows above unit 2. 14 . Number 25 was clearly two storeys from the street. 15 . There was a detailed landscape plan proposed that would provide ample vegetation on the street front, and the proposal had a 6.7 m front setback to one half of the front facade, the same setback as No. 25, but contrary to No. 25 the other half of the street elevation of the proposal was actually set back 14 m. It would have much less street presence than No. 25 and the Court could not agree that it would change the streetscape to the extent that it should be refused. 16 . The landscape plan was another concern of the objectors as the amount of vegetation proposed was seen as providing too much potential for bushfire in this locality that they categorised as high hazard. The plans of the proposal had been sent to the Rural Fire Service but not the landscape plan. Bearing in mind the dangerous bushfires in the Lane Cove National Park over the past several years the Court adjourned the hearing so that it could be considered by the Rural Fire Service. 17 . When the hearing resumed the landscape plan in Exhibit J was tendered and a letter from the Rural Fire Service saying it had signed off on the plan subject to a condition to relocate two trees further from the boundary with No. 27. The objectors had some concerns that signing off did not mean approval. The Court accepts that it does mean approval by the Rural Fire Service. 18 . The evidence and submissions were that the house at No. 27 was between the proposal and the bush. Number 27 had to maintain an outer protection fire zone and an inner protection fire zone that also protected No. 27A. If the same requirements did apply to No. 27A then it had the recommended 50 m separation from the bush required for the two protection zones. 19 . In addition the hazard assessment for the site itself was not high hazard although perhaps the locality was high hazard. The low hazard classification for the site was due to its distance from the bush, the low slope of the land and the vegetation types proposed in the landscaping which actually put it in the low hazard category. The Court was assured the council was attending to its responsibilities for its locality under the Bushfire Act, even though the objectors thought differently. 20 . The objectors were also concerned about access of bushfire fighting trucks, both along Blaxland Road and down to the houses adjoining the bush. The Court had no evidence from traffic or road engineers or the fire fighting authorities to say that access was not satisfactory. 21 . In regard to the landscape plan and the potential for bushfire hazard the Court must find the proposal acceptable. The landscaping would also provide suitable screening and softening of the built forms of the structures. 22 . In addition to the screen vegetation the living rooms of the proposal were at the lower level which was at the same level or just above the flat rear yards of each unit. There would be a 1.8 m high boundary fence between No. 27A and No. 27 and an 8.5 m separation between buildings. This would achieve reasonable suburban privacy between houses, especially the rear windows of No. 27. 23 . The orientation of the proposal with its living rooms facing north would receive ample sunlight. The windows to all habitable rooms meet relevant standards for natural light and ventilation. The proposed driveway was amended by new plans in Exhibit G to give further clearance from one existing mature red gum tree to be retained, and the drive is to be supported on piers where it is within 5 m of the trunk to avoid damage to the roots. 24 . Also on resumption of the hearing revised drainage plans were tendered in Exhibit H that provided for a one in one hundred year detention area on the surface of the back yards of each unit. This would control run-off from the site and allow it to drain slowly through an easement across No. 27 into the Lane Cove National Park. 25 . The objectors were concerned about the stability of the small retaining wall on the boundary with No. 27 but council engineers and the applicant's drainage engineers had inspected the wall and had no issues in that respect. 26 . In view of the adjournment and the tendering of exhibits G, H and J the deferred commencement conditions in Exhibit B are no longer needed. The applicant also accepted condition 13 should incorporate requirements for a dilapidation report to be prepared by a suitably-qualified person on each of the adjoining houses and driveways prior to commencement of any works on the site, copies of the reports to be given to each property owner and discussed as necessary before work commences on the site. Condition 62 is to be amended to include construction of the driveway on piers within 5 m of the red gum and no change of ground level within that radius. 27 . Overall the Court finds no reason sufficient to refuse the consent orders sought by the parties. Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to Application No. 1125/02 for construction of an attached dual occupancy on the existing vacant land at Lot 2, DP 1036878, known as 27A Blaxland Road, Killara, in accordance with plans prepared by The Winter Group, reference No. 20213 DA 00 Rev B, 20213 DA 01 Rev D dated 12 September 2003, 20213 DA 02 Rev E and 20213 DA 03 Rev E dated 13 September 2003, Engineering Plans prepared by A & K Engineering Group, Drawing Nos. 27A – SW/02 sheets 1 and 2 dated 10 September 2003, Landscape Plan No. 02195BA Rev C dated 11 September 2003 by Vision Dynamics as amended in red in Exhibit J all subject to and as amended by the conditions as set out in Annexure 'A'. 3. The exhibits be returned to the parties except Exhibits 1, G, H and J. 4. The Court notes the parties agreement for no order as to costs. ________________ K G Hoffman Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.